Legal Pluralism & Integrated Water Resources Management
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SOUTH AFRICA CASE STUDY

Formal water legislation in Sub-Saharan Africa is typically rooted in the colonial conquest of land and related water resources and the later dichotomous water development in dual economies. Colonial and later governments ascribed at best secondary status to African agrarian customary water rules and practices. This secondary status is perpetuated under recent legal reforms towards Integrated Water Resources Management. New requirements of registration for formal water rights and payment for water resources management services (this is not cost-recovery of state-initiated infrastructure construction, operation and maintenance) typically suit the state and the few large-users, relegating the large majority of rural small-scale water users to another form of secondary status.

This case study explores the continuing 'secondary status' of African small-scale water users in the former Lebowa and KwaNdbele homelands compared to the former white-dominated areas in the Olifants Basin, Republic of South Africa. It compares the implementation of the Water Act of 1956 in the former white areas of the Republic of South Africa with implementation in the former homelands by (contested) customary tribal authorities. The National Water Act of 1998 reproduces this secondary status of water rights in the former homelands by recognizing 'existing lawful water use' as a basis for licensing. The study explores whether this and other parts of the Act are potentially and actually exacerbating this secondary status or improving it. In particular, it looks into water authorization (licensing, Schedule one uses, Reserve, general authorizations, compulsory licensing) and into the connections between registration and payment of water resource management services and future Catchment Management Agencies. Recommendations are being developed to better operationalize the overarching goal of the Act to redress the inequities from the past into the implementation of water legislation.

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